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REHABILITATING TOTALITY IN SENTENCING:
FROM OBSCURITY TO PRINCIPLE
MIRKO BAGARIC* AND THEO ALEXANDER**
I INTRODUCTION
The totality principle applies in cases of multiple offending to reduce the total
effective sentence that is imposed on offenders. This is normally achieved by
either making some or all of the individual sentences concurrent, or by reducing
the length of the individual sentences. Although totality is a well-established
sentencing doctrine, its scope and its impact on the overall sentence are unclear.
Current orthodoxy maintains that principles of proportionality and mercy
underpin totality. This article argues that neither of these is capable of providing
a solid foundation for totality, and that this area of law will remain
unsatisfactorily indeterminate until a clear and defensible rationale is adopted. It
is suggested that the main justification for the principle is that offenders who are
sentenced for multiple offences have not had the opportunity to be rehabilitated
through the imposition of earlier sanctions. While this provides a logical basis for
distinguishing these offenders from those who have been sentenced for each
offence separately, the size of the sentencing discount merited is not considerable
given the relative importance of rehabilitation in the overall sentencing calculus.
A Totality in Sentencing
Sentencing is not an exact science, thus there is no single sentence that is
objectively correct.1 This view has resulted in suggestions that sentencing law is
unprincipled and a jurisprudential wasteland. 2
*
**
1
2
Professor and Dean, Deakin Law School, Deakin University.
Lecturer, Deakin Law School, Deakin University and Barrister, Victorian Bar.
Freeman v The Queen [2011] VSCA 214, [6]; Hennessy v The Queen [2012] NSWCCA 241, [35].
See Jeff Smith, ‘Clothing the Emperor: Towards a Jurisprudence of Sentencing’ (1997) 30 Australian &
New Zealand Journal of Criminology 168, 170; Mirko Bagaric, ‘Sentencing: The Road to Nowhere’
(1999) 21 Sydney Law Review 597, 608–26. Similar observations have been made in relation to
sentencing systems in other jurisdictions. Leading scholar Andrew Ashworth has labelled United
Kingdom sentencing law a ‘cafeteria system’ of sentencing: Andrew Ashworth, Sentencing and Criminal
Justice (Butterworths, 2nd ed, 1995) 331. In a similar vein, over 40 years ago United States federal judge
Marvin Frankel described sentencing as a wasteland in the law: Marvin E Frankel, Criminal Sentences:
Law Without Order (Hill and Wang, 1973).
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The complexities and vagaries of sentencing law are compounded when an
offender is sentenced for more than one offence. In such circumstances, the
effective sentence is governed by several discrete sentencing considerations, the
most important of which is the principle of totality.3
The totality principle is a ‘principle of sentencing formulated to assist a court
when sentencing an offender for a number of offences.’4 It operates to ensure that
the sentence reflects the overall criminality of the offending behaviour, as
opposed to a linear, mathematical cumulation of the penalty for each offence.
This stance is to be contrasted with the position in other jurisdictions where
consecutive sentences are common, the most obvious example being the United
States,5 where penalties exceeding imprisonment for over a century are
sometimes imposed. Such hardships are not confined to offences that shock the
community. It has been noted that ‘[t]he same wrong can be prosecuted as
multiple offenses, resulting in decades- to centuries-long sentences for first-time
non-violent offenders, sentences sometimes far surpassing those for murderers.’6
The effect of the totality principle is normally to reduce the overall sentence.
Accordingly, offenders who are sentenced for a number of offences at the same
time receive a reduced sentence compared to those who commit identical
offences consecutively after the sentence for each offence has been served. An
offender who commits a robbery on each of five consecutive days and is
sentenced for all of the robberies at the one hearing will serve considerably less
time in prison than an offender who commits five robberies several years apart,
and is sentenced for each offence individually.
While, in theory, the totality principle can be stated with elegant simplicity,
its scope and application are unclear. In particular, the manner in which the
principle applies to offences of a different nature and those committed many
years apart is uncertain. The logical reasoning process by which the totality
computation is achieved remains obscure – verging on arbitrary. Moreover, the
justification and rationale for totality remains unsettled and, in fact, there has
been surprisingly little scholarly consideration of its foundation.
3
4
5
6
Totality is a commonly invoked sentencing principle. A recent report, published by the Victorian
Sentencing Advisory Council, analysed the sentencing appeals determined by the Victorian Supreme
Court of Appeal for two calendar years (2008 and 2010): Sentencing Advisory Council, ‘Sentence
Appeals in Victoria: Statistical Research Report’ (Report, Sentencing Advisory Council, March 2012). In
2008, there were 114 offender appeals and totality was invoked as a ground in 21 of these appeals –
making it the fifth most utilised appeal ground: at 92. In 2010, there were 153 offender appeals and
totality was again invoked as an appeal ground on 21 occasions – making it the fifth most frequently
utilised ground for that year as well: at 95. Totality was invoked as an appeal ground less commonly in
relation to Crown sentencing appeals: at 93, 96. Although in 2010, the approach to cumulation was
invoked by the Crown as a ground of appeal in seven of the 27 cases.
Mill v The Queen (1988) 166 CLR 59, 62 [8] (‘Mill’).
For a good overview of the position in the United States, see Soo-Ryun Kwon, Amanda Solter and Dana
Marie Isaac, ‘Cruel and Unusual: US Sentencing Practices in a Global Context’ (University of San
Francisco School of Law, Center for Law and Global Justice, 2012) 36–42.
Ibid 37. The totality principle discussed in this paper focuses on Australian case law and legislation.
However, it operates similarly in the United Kingdom: see Sentencing Council, ‘Offences Taken into
Consideration and Totality: Definitive Guideline’ (2012).
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B Overview of Article: Key Findings and Reform Proposals
In this article we provide a rationale for the totality principle and discuss the
extent to which totality should operate to mitigate sentences.
In the next section, we examine the current operation of the principle and
argue that its scope is vague. We also examine the mechanics by which totality is
given effect and the circumstances in which it applies.
In section three, we discuss the rationale and justification for the principle. It
emerges that there is no accepted, stand-alone jurisprudential or normative
justification for totality. On the basis of the current approach, the only ideal that
potentially justifies totality is the principle of proportionality. However, this
alone cannot justify substantial reductions in sentences. In the end, the totality
principle seems to be based on an innate desire not to impose sanctions that crush
offenders. It is not clear whether this merciful tendency should outweigh the
dictates of a rational system of punishment and sentencing.
In section four we make reform proposals. To the greatest extent possible,
luck should not define much of what is meaningful in people’s lives.7 Whether or
not an offender guilty of multiple offences or a repeat offender happens to get
sentenced consecutively or at the same time for all or some of the offences, is
often a matter of fortuity. Thus, a principled reason is necessary to justify totality.
On a closer analysis there is, in fact, a tenable basis for punishing less severely
offenders who are sentenced for multiple offences than those who commit
identical offences and are sentenced consecutively.
Two aspects of sentencing aim to dissuade offenders from reoffending:
specific deterrence and rehabilitation. Offenders who are sentenced for multiple
offences are denied the advantages of such interventions in relation to each
offence – had they been sentenced consecutively they may have been deterred
from reoffending or rehabilitated. This sets them apart from offenders who
commit offences consecutively. Potentially, this different treatment supports
lower sentences for offenders sentenced for multiple offences.
However, logically, the validity of this justification is contingent on the
efficacy of sentencing to achieve the goals of specific deterrence and
rehabilitation. The current state of the relevant empirical data provides some
support for this proposition so far as rehabilitation is concerned,8 but not so in the
case of specific deterrence.9
Totality applies not only to sentences of imprisonment, but also to other
sentencing dispositions such as fines and civil penalties.10 However, in the
context of imprisonment it applies most acutely and has been subject to the most
extensive analysis. In this article, the focus is on its application in relation to
7
8
9
10
See generally Bernard Williams, Moral Luck (Cambridge University Press, 1982); Mirko Bagaric, How
to Live: Being Happy and Dealing with Moral Dilemmas (University Press of America, 2006) ch 1.
See discussion in section IV C below.
See discussion in section IV B below.
See Camilleri’s Stock Feeds Pty Ltd v Environmental Protection Agency (1995) 32 NSWLR 683, 704;
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, 581 [94].
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sentences of imprisonment. The recommendations made in the last part of the
article, however, apply to all applications of totality.
II
EXISTING LAW
A Common Law Doctrine
1 Circumstances in Which Totality Applies
Totality is a common law construct. It applies in cases of multiple offending
by the one offender. More specifically, the circumstances in which it applies are:
(i) when an offender is being sentenced for more than one offence; (ii) when an
offender is already undergoing a prison term and is being sentenced for a
separate offence or offences; and (iii) when an offender has completed a sentence
and is being sentenced for an offence which was committed before or during the
period of the initial sentence.
While totality has a statutory basis or recognition in all Australian
jurisdictions, the common law remains highly relevant.
2
The Totality Principle
The totality principle can be stated in concise terms: it ‘requires a sentencing
judge to impose a sentence or sentences which reflect the overall criminality of
the offending for which the offender has been convicted.’11
In a more expansive form, the totality doctrine is set out in the following
passage by David Thomas in Principles of Sentencing,12 which is regularly cited
by Australian courts as being explanatory of the principle:
The effect of the totality principle is to require a sentencer who has passed a series
of sentences, each properly calculated in relation to the offence for which it is
imposed and each properly made consecutive in accordance with the principles
governing consecutive sentences, to review the aggregate sentence and consider
whether the aggregate is ‘just and appropriate’. The principle has been stated
many times in various forms: ‘when a number of offences are being dealt with and
specific punishments in respect of them are being totted up to make a total, it is
always necessary for the court to take a last look at the total just to see whether it
looks wrong[‘]; ‘when … cases of multiplicity of offences come before the court,
the court must not content itself by doing the arithmetic and passing the sentence
which the arithmetic produces. It must look at the totality of the criminal
behaviour and ask itself what is the appropriate sentence for all the offences’.13
Thus, the effect of the principle is to reduce the sentence which an offender
would have otherwise received.14 In R v MAK (‘MAK’) the Court stated that the
11
12
13
14
Contin v The Queen [2012] VSCA 247, [38]. See also Johnson v The Queen (2004) 78 ALJR 616, 623
[18] (‘Johnson’); R v Richardson [2010] SASC 88, [24].
David Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56–7 (citations omitted).
For example, see Mill (1988) 166 CLR 59, 62; R v Bagnato (2011) 112 SASR 39, 61 [84] (‘Bagnato’);
Einfeld v The Queen (2010) 266 ALR 598, 638 [181]; Hankin v The Queen (2009) NTLR 110, 129–30
[83].
A good overview of the workings of the principle is provided by Howie J in Cahyadi v The Queen (2007)
168 A Crim R 41.
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totality principle should not be applied in a manner that gives the impression that
there ‘is some kind of discount for multiple offending’.15 However,
pragmatically, there is no limit at all, given that the effect of the principle is
precisely to reduce the total effective sentence in cases of multiple offending.
The statement in MAK is, however, defensible if it is interpreted to mean that
totality should not be applied to the extent that it confers an unjust penalty
reduction in cases of multiple offending.16
It is settled that the totality principle is a final step in the sentencing process,
which requires the sentencer to reflect on the entire gravamen of the offending
and impose an appropriate penalty. In R v Creed, Chief Justice King stated that
ultimately a sentencing judge has to ‘stand back and look at the overall picture
and decide whether the total of what would otherwise be the appropriate sentence
is a fair and reasonable total sentence to impose.’17 In a similar vein, in
Postiglione v The Queen, Justice Kirby described the principle of totality as
being in the nature of a check to be applied after reaching a conclusion as to the
appropriate sentence, having regard to the objective criminality of the conduct
and matters of mitigation.18
B Mechanics of the Totality Process
Offenders are ultimately concerned with the total effective sentence that is to
be served, rather than with the mechanism by which it is arrived at. However, the
courts have stated that the methodology for invoking the totality principle is
important. The preferred approach in sentencing an offender for a number of
offences is to determine the exact penalty for each offence and then set an
effective term. In Pearce v The Queen (‘Pearce’), McHugh, Hayne and Callinan
JJ noted one way to give effect to the proportionality principle:
To an offender, the only relevant question may be ‘how long’, and that may
suggest that a sentencing judge or appellate court should have regard only to the
total effective sentence that is to be or has been imposed on the offender. Such an
approach is likely to mask error. A judge sentencing an offender for more than one
offence must fix an appropriate sentence for each offence and then consider
questions of cumulation or concurrence, as well, of course, as questions of
totality.19
However, there are in fact a number of ways to apply the totality principle.20
The first is to adopt the approach in Pearce and impose a proportionate sentence
15
16
17
18
19
20
(2006) 167 A Crim R 159, [18]. This notion has been approved of in numerous cases, see, eg, Baghdadi v
The Queen [2012] NSWCCA 212, [43] (‘Baghdadi’); Paxton v The Queen [2011] NSWCCA 242, [212];
R v Hay [2009] NSWCCA 228, [124].
As discussed later, the difficulty of this construction lies in the fact that there is no basis for ascertaining
the size of the discount that is appropriate.
(1985) 37 SASR 566, 568.
(1997) 189 CLR 295, 340–1 (‘Postiglione’). The same view was taken by Doyle CJ and Olssen J in R v
Major (1998) 70 SASR 488, 490 and in R v Place (2002) 81 SASR 395, 426. See also Johnson (2004) 78
ALJR 616.
(1998) 194 CLR 610, 623–4 [45]. See also Johnson (2004) 78 ALJR 616, 624 [26].
For a discussion of the degree of flexibility that is available, see Yeonata v The Queen [2012] NSWCCA
211.
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for each offence and then to make some or all of the discrete sentences
concurrent – either wholly or in part.21 The second way, which was expressly
endorsed by the High Court in Mill, is to lower the sentence for each offence or
for some of the offences below that which would otherwise have been imposed.22
This approach is used less commonly. However, it is sometimes the only method
by which the principle of totality can be given effect – for example, when the
offender has already served a sentence for a relevant offence.23
A middle course is referred to as ‘moderate and cumulate’.24 The difference
between this approach and the first is discussed in Director of Public
Prosecutions (Vic) v Grabovac, where the Court expressed disapproval of a
moderate and cumulate technique. The Court stated:
In general a court should avoid imposing artificially inadequate sentences in order
to accommodate the rules relating to cumulation. In other words, … where
practicable when applying accepted rules of sentencing as to totality,
proportionality and the like and in order to fashion an appropriate total effective
head term in relation to a series of offences, it is preferable to achieve a
satisfactory result by passing appropriate individual sentences and to make those
sentences wholly or partially concurrent, rather than by an order or orders for the
cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of
this kind can only be a precept or guideline to be applied as and when
practicable.25
Subsequent decisions have not rejected the moderate and cumulate approach,
and it has been suggested that there is no meaningful distinction between this and
the first approach.26 This is correct from the perspective of the total effective
sentence that is arrived at, but the ‘moderate and cumulate’ approach does
21
It has been noted that there is a some leeway accorded in fixing each individual sentence and that an
appeal court will not scrutinise each sentence too finely. In Hennessy v The Queen [2012] NSWCCA 241,
the Court stated at [23]–[24]:
While it may have been better for his Honour to have fixed different sentences for each offence, there is a
point at which the criticism is one of form rather than substance. As long as each sentence is within the
range applicable for the criminal conduct and the level of accumulation and concurrency is such that there
is no error in totality, it is imposing too strict a regime on sentencing judges to require them to fix a
different sentence for each offence charged. Ultimately, as the High Court has made clear in Pearce, the
task is one of fixing an appropriate sentence duration for each offence and thereafter considering the degree
of concurrence or accumulation that reflects the totality of criminal conduct.
22
See also KC v Western Australia [2008] WASCA 216, [31]; Warner (AKA Jeremy Pachenko) v The
Queen [2013] NSWCCA 10, [46].
(1988) 166 CLR 59, 66–7 [16]. This approach is appropriate despite the seemingly prescriptive
preference for the first approach by the High Court in Pearce. The supposed tension between the
approaches in Mill and Pearce was reconciled by Gummow, Callinan and Heydon JJ in Johnson (2004)
78 ALJR 616, 624 [26], as follows:
[T]he joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality
which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the
orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating
them before taking the next step of determining concurrency. Pearce does not decree that a sentencing
judge may never lower each sentence and then aggregate them for determining the time to be served.
23
24
25
26
See Mill (1988) 166 CLR 59, 66–7 [18].
This approach was endorsed in R v Izzard (2003) 7 VR 480, 485–6 [21]–[23].
[1998] 1 VR 664, 680.
See DHC v The Queen [2012] VSCA 52, [98] (Weinberg JA).
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involve a different mathematical computation to the first approach. This can be a
difference in substance, as opposed to merely form. If an offender is acquitted on
appeal on some charges but not others, the first approach is likely to attract a
higher remaining sentence – although it could then be adjusted on appeal.
The fourth technique to give effect to proportionality is not to specify the
sentence for each offence, but to impose an aggregate sentence. In DHC v The
Queen, it was noted that where there is a large number of individual offences, it
is appropriate to confer an aggregate sentence.27 As noted below, statutory
provisions in several jurisdictions expressly permit sentence aggregation. The
final method by which the totality principle is applied is by manipulation of the
commencement time for sentences.28
C Statutory Recognition of the Principle
Aspects of the totality principle or the mechanics by which totality can be
given effect have a statutory foundation in most Australian jurisdictions.
However, the totality principle per se has not been systematically developed or
enshrined in any of the relevant statutory schemes. The complexities and nuances
associated with the principle are not addressed in the sentencing legislation and,
hence, prior to considering the detail of the principle, it is appropriate to briefly
discuss the relevant legislative provisions.
The only jurisdiction to expressly endorse the totality principle is Western
Australia. Section 6(3)(b) of the Sentencing Act 1995 (WA) provides that a
sentence can be reduced because of ‘any rule of law as to the totality of
sentences.’ This is complemented by section 88 which creates a presumption of
concurrency.
In the Commonwealth jurisdiction, the totality principle is recognised by
section 16B of the Crimes Act 1914 (Cth) which requires a court sentencing an
offender to have regard to any other sentence yet to be served for any other state
or federal offence.29 Further, pursuant to section 19AD of the Crimes Act 1914
(Cth), a court, when sentencing an offender for a federal offence who is already
the subject of a non-parole period for a federal offence, is to have regard to a
number of factors in deciding whether to impose a new parole period and, if so,
the length of the period. The relevant factors are the existing non-parole period,
the prior criminal history of the offender and the nature and circumstances of the
offence.
Sections 9(2)(k)–(m) of the Penalties and Sentences Act 1992 (Qld)
incorporate the totality principle by prescribing that in sentencing an offender a
court is to have regard to:
27
28
29
[2012] VSCA 52, [77], [85]–[88], [98]. See also Bagnato (2011) 112 SASR 39, [56]–[60] (Gray and
Sulan JJ).
See, eg, Baghdadi [2012] NSWCCA 212.
See Postiglione (1997) 189 CLR 295.
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(k) sentences imposed on, and served by, the offender in another State or a
Territory for an offence committed at, or about the same time, as the offence
with which the court is dealing; and
(l) sentences already imposed on the offender that have not been served; and
(m) sentences that the offender is liable to serve because of the revocation of
orders made under this or another Act for contraventions of conditions by the
offender …
Section 155 of the Penalties and Sentences Act 1992 (Qld) creates a
presumption of concurrency when an offender is sentenced to imprisonment for
more than one offence or is already undergoing a sentence of imprisonment,
however, discretion is provided in section 156 to order cumulative sentences in
such circumstances.
In New South Wales, section 55(1) of the Crimes (Sentencing Procedure) Act
1999 (NSW) creates a presumption of concurrency when an offender is
sentenced to imprisonment for more than one offence or is already undergoing a
sentence of imprisonment. However, this is displaced in relation to certain
offences committed while in custody. Section 53A of the Crimes (Sentencing
Procedure) Act 1999 (NSW) provides for aggregate sentences in certain
circumstances, which (as we have seen above) can be used to facilitate the
totality principle.
In the Northern Territory, section 50 of the Sentencing Act 1995 (NT) creates
a presumption of concurrency when an offender is sentenced to imprisonment for
more than one offence or is already undergoing a sentence of imprisonment.
However, section 51 also expressly permits discretion to accumulate sentences in
such circumstances. Section 52 allows for aggregate sentences to be imposed
where two or more sentences are handed down at the one time, thereby
facilitating the totality principle.
Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) is similar to
section 52 of the Sentencing Act 1995 (NT). It expressly permits aggregate
offences, stating:
If a person is found guilty by a court of a number of offences, the court may
sentence the person to the one penalty for all or some of those offences, but the
sentence cannot exceed the total of the maximum penalties that could be imposed
in respect of each of the offences to which the sentence relates.
To similar effect are section 57(3) of the Crimes (Sentencing) Act 2005
(ACT) and section 11(2) of the Sentencing Act 1997 (Tas).
In Victoria, section 9(2) of the Sentencing Act 1991 (Vic) provides that if an
aggregate sentence is imposed by a court for one or more offences, the sentence
cannot exceed that which would have been imposed if a separate sentence was
imposed for each offence. Section 16(1) creates a presumption in favour of all
sentences being concurrent, but this is displaced in relation to certain offences
and forms of offending, including where the offence is a prison or escape
offence,30 the offender is a serious offender,31 or the offence is committed while
30
Sentencing Act 1991 (Vic) ss 16(1A)(b), 16(3).
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the offender is on parole32 or while on bail.33 Thus, a number of circumstances
are set out where the principle is displaced, and concurrency is only permitted in
cases where exceptional circumstances exist. The importance of the totality
doctrine is underlined by the preparedness of the courts to find exceptional
circumstances and their willingness to reduce the total effective sentence (by
applying the totality principle), even in the absence of such circumstances.34
Justice of Appeal Redlich in Director of Public Prosecutions (Vic) v Johnson
stated that in situations where the legislature has indicated a preference for
cumulative sentences, the totality principle can still apply by adopting the second
technique for lowering the overall sentence (ie, by lowering the individual
sentences). His Honour indicated that:
while some approaches to applying the principle of totality may be inconsistent
with the requirements of s 16(3B) of the Sentencing Act 1991, others may not. A
sentencing court is not entitled to set its face against the clear wording of s 16(3B)
and pursue an application of the principle of totality that may call for orders of
concurrency or only partial cumulation in developing a head sentence that reflects
the total criminality of the accused. However, a sentencing court may be entitled
to tailor the application of the principle to avoid contravening the section …
Nothing in the language of s 16(3B) suggests, in terms, that it is intended to
diminish the totality principle.35
D Circumstances in Which Totality Operates
The most straightforward situation where totality applies is when an offender
is sentenced for a number of similar offences committed within a relatively short
period of time. In such circumstances, concurrent sentences are normally
imposed.36 However there is no strict rule to this effect. In Koncurat v Western
31
Sentencing Act 1991 (Vic) s 16(1A)(c). For comments on this see McL v The Queen (2000) 203 CLR 452,
where McHugh, Gummow and Hayne JJ stated at 476–7 [76]:
The need for judges not to compress sentences is especially important where the accused person is a
‘serious sexual offender’ within the meaning of s 16(3A) of the Sentencing Act, and similar provisions.
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from
other offenders. It was plainly intended to have more than a formal effect, which is the effect it would
frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s
16(3A), the scope for applying the totality principle must be more limited than in cases not falling within
that section. The evident object of the section is to make sentences to which it applies operate cumulatively
rather than concurrently. The section gives the judge discretion to direct otherwise. But the object of the
section would be compromised and probably defeated in most cases if the ordinary application of the
totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A)
and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be
astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the
sentences as if that section (or s 6E which replaced it) was not on the statute book.
32
33
34
35
36
Sentencing Act 1991 (Vic) ss 16(1A)(d), 16(3B). The principle is applied even when there are no
exceptional circumstances: R v Warwick (Sentence) [2012] VSC 382.
Sentencing Act 1991 (Vic) ss 16(1A)(e), 16(3C).
Arnautovic v The Queen [2012] VSCA 112.
(2011) 213 A Crim R 262, 276–7 [68]–[69]. See also Waugh v The Queen [2013] VSCA 36, [29];
Arnautovic v The Queen [2012] VSCA 112.
See, Dicker v Ashton (1974) 65 LSJS 150, 151; R v Faithfull (2004) 142 A Crim R 554; DPP (Vic) v
Grabovac [1998] 1 VR 664.
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Australia the court noted that the ‘so-called “one transaction rule” or “continuing
episode rule”‘37 is ‘not a rule at all. It is merely a guideline.’38 A degree of
cumulation may be ordered in relation to offences committed over a similar
period where the offences violate different interests or cannot be regarded as part
of the single criminal enterprise, or where concurrency would not reflect the
gravity of the overall offending.39
The totality principle becomes more complicated where the offences are
committed over a longer period of time, are committed in different jurisdictions,
where the offender has served part of a sentence or the offender commits
offences of a different nature.
Several complexities associated with the principle were clarified in the
seminal High Court decision dealing with totality. Mill concerned a situation
where the offender committed two armed robberies in Victoria and one in
Queensland within the space of about six weeks over the period 8 or 9 December
1979 to 19 January 1980. On 1 September 1980 he was sentenced in Victoria for
armed robberies committed in Victoria to an effective term of ten years’
imprisonment, with a non-parole period of eight years. On his release, he was
returned to Queensland and in March 1988 he was sentenced to eight years
imprisonment with a recommendation that he be eligible for parole after three
years, in light of the sentence he had completed in Victoria. The High Court, in
allowing the appeal, made several important points about the scope of the totality
principle.
First, it applies when the offences are committed in different jurisdictions.
Secondly, it applies not only to setting the non-parole period, but also the head
sentence.40 Thirdly, the principle also applies in relation to offences where the
sentence has been partially or totally served.41 This last point was emphasised by
McHugh J in the subsequent High Court decision of Postiglione, where his
Honour stated that: ‘in order to comply with the totality principle, a sentencing
judge must consider the total criminality involved not only in the offences for
which the offender is being sentenced, but also in any offences for which the
offender is currently serving a sentence.’42
In the circumstances, the High Court in Mill held that the proper approach
that should have been taken to the Queensland sentence is: ‘to ask what would be
likely to have been the effective head sentence imposed if the applicant had
committed all three offences of armed robbery in one jurisdiction and had been
sentenced at one time’.43
37
38
39
40
41
42
43
[2010] WASCA 184, [40], citing Steytler P in State of Western Australia v Miller (2005) 30 WAR 38,
[14]–[17].
Ibid, citing Dicker v Ashton (1974) 65 LSJS 150, 151.
Royer v Western Australia (2009) 197 A Crim R 319.
Mill (1988) 166 CLR 59, 65–6 [14].
See also R v Suckling (1983) 33 SASR 133.
(1997) 189 CLR 295, 308. See also R v Hunter (2006) 14 VR 336.
(1988) 166 CLR 59, 66 [16].
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Thus, when an offender already under sentence is being sentenced for other
offences, the guiding principle for the judge or magistrate is to ascertain the
sentence that would have been imposed if the offender was sentenced for all of
the offences at the one time.
More complicated is where the offences are committed over a long period of
time. This issue has been considered in a number of cases and it is now clear that
even where the offences are committed over a very long period of time, the
principle of totality applies where the offences are of a similar nature.44 The
principle also applies where the offences are committed over a short period of
time, but the sentencing occurs much later for reasons not related to the operation
of the criminal justice system, for example, where the offender remains silent and
evidence of his or her involvement in the offence comes to light several years
later.45
Where an offender is reimprisoned for breaching parole, and the new
offences are similar to those which resulted in the original jail term, it is unclear
whether the totality principle applies to the entire time spent in custody for the
original offence, or merely the additional period that the offender is sentenced to
serve as a result of breaching parole. In Contin v The Queen, the Victorian Court
of Criminal Appeal expressly refused to resolve the matter, noting that there are
authorities supporting either approach.46 A stricter approach was adopted in the
more recent decision of McCartney v The Queen, where it was held that where an
offender is sentenced for offences committed while he or she is on parole, the
sentencer, in applying the totality principle, is required to have regard only to the
additional period of imprisonment to be served as a result of the breach of
parole.47
The application of the totality doctrine to offences of a different nature
remains uncertain. It is well established that the principle can apply to offences
between indictments or within the same indictment.48 Earlier, authorities
confined the principle to offences that were of a similar nature or in some way
connected.49 However, the trend of recent decisions is to abolish the need for the
offences to be similar.50 Authorities suggest that in some instances, total
concurrency for distinct offences is appropriate. In R v King, the Court noted that
‘complete concurrency for separate crimes may be appropriate at times’51 but
then approved Justice Hidden’s comment in R v Cutrale that ‘it is more likely
that, where the offences are discrete and independent criminal acts, the sentence
for one offence can not comprehend the criminality of the other.’52
44
45
46
47
48
49
50
51
52
See, eg, R v Wright [2009] VSCA 27, where the offender sexually abused a number of boys over a period
spanning nearly a decade.
RLS v The Queen [2012] NSWCCA 236.
[2012] VSCA 247, [71].
[2012] VSCA 268, [100]. A broad approach is taken in Waugh v The Queen [2013] VSCA 36, [26].
DPP (Vic) v Marino [2011] VSCA 133, [53].
R v Harrison (1990) 48 A Crim R 197.
R v Hunter (2006) 14 VR 336.
[2011] NSWCCA 274, [20].
Ibid.
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The application of the totality principle is generally not contingent upon the
nature of the offence in question, thus, the principle transcends all offence types.
There is one qualification to this – offences against the person. In most
circumstances where the offences have caused harm to more than one victim
(even if they are committed as part of the single transaction, for example,
dangerous driving causing multiple deaths), total concurrency is not
appropriate.53 This is justified by the need to recognise the importance of
separateness of victims and the loss and trauma experienced by them.54 However,
even this principle is not absolute. In Director of Public Prosecutions (Vic) v
Marino the Court stated:
It is understandable that, in relation to death and serious injury involving multiple
victims, ordinarily, some cumulation is required in respect of the offences relating
to each victim. The cases, however, are not authority for the proposition that,
where the offending results in any injury to more than one victim, a sentencing
judge must provide for some cumulation in respect of the offences relating to each
victim. Cumulation may well be appropriate in many such cases. However, as I
have already stated, cumulation must be applied in the light of the principle of
totality.55
Where the offences relate to one victim, total concurrency will also often not
be appropriate where the criminality relates to different forms of harm.56
The area where totality is most obscure is the extent to which it can operate
to reduce a sentence. Apart from the fact that in some instances total concurrency
is appropriate, there is no settled principle regarding this issue. As discussed
below, this is partly due to the unclear nature of the rationales supposedly
underpinning the doctrine. It is also largely a manifestation of the general
approach to sentencing decisions, which by its very nature is open-ended.
The overarching methodology and conceptual approach that sentencing
judges undertake is known as ‘instinctive synthesis’. The term originates from
the Full Court of the Supreme Court of Victoria decision of R v Williscroft, where
Adam and Crockett JJ stated that ‘ultimately every sentence imposed represents
the sentencing judge’s instinctive synthesis of all the various aspects involved in
the punitive process.’57
The general methodology for reaching sentencing decisions has been
considered by the High Court on several occasions, and the Court has
consistently adopted the instinctive synthesis approach and rejected the
alternative, which is normally referred to as the two step approach.58 The
alternative approach involves a court setting an appropriate sentence
53
54
55
56
57
58
Similar comments have been made in relation to burglary offences: R v Harris (2007) 171 A Crim R 267.
See, eg, Richards v The Queen (2006) 46 MVR 165; R v Janceski (2005) 44 MVR 328.
[2011] VSCA 133, [53] (citation omitted). See also R v KM [2004] NSWCCA 65.
Nguyen v The Queen [2007] NSWCCA 14; R v BWS [2007] NSWCCA 59.
[1975] VR 292, 300 (Adams and Crockett JJ).
Markarian v The Queen (2005) 228 CLR 357, 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ)
(‘Markarian’); Hili v The Queen (2010) 242 CLR 520, 527 [18], 528 [25], 534 [44].
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commensurate with the severity of the offence, then making allowances up and
down in light of relevant aggravating and mitigating circumstances.59
In Wong v The Queen (‘Wong’), most members of the High Court saw the
process of sentencing as an exceptionally difficult task with a high degree of
‘complexity’.60 Exactness is supposedly not possible because of the inherently
multifaceted nature of that activity.61
Despite the uncertainty of outcome that is produced by the instinctive
synthesis approach, this methodology was confirmed by the majority in
Markarian, where it was noted that ‘[f]ollowing the decision of this Court in
Wong it cannot now be doubted that sentencing courts may not add and subtract
item by item from some apparently subliminally derived figure, passages of time
in order to fix the time which an offender must serve in prison.’62
Thus, the general approach to sentencing decisions militates against a high
level of clarity regarding the precise operation of the totality principle.63
However, as noted above, it is clear that the principle is capable of weighing
heavily in the sentencing decisions, to the point where, in some cases, total
concurrency is available even in relation to serious offences.
E The Concept of a Crushing Sentence as Guiding the Principle
The concept of a crushing sentence is integral to the totality principle. A
crushing sentence is commonly defined as one that destroys an expectation of a
meaningful life after release.64 In R v Beck the Court described a crushing
sentence (of nine and a half years imprisonment) as one which risked ‘provoking
within the applicant a feeling of helplessness and the destruction of any
reasonable expectation of a useful life after release.’65
Whether a sentence is crushing is not solely determined by a numerical
figure, although the length of the sentence is a cardinal consideration in
evaluating whether a sentence is crushing. The age of the offender is another
important consideration.
In Haines v The Queen, it was noted that in considering whether a sentence is
crushing, other relevant considerations include ‘maximum penalties, any standard
non-parole periods, the objective and subjective factors’.66
59
60
61
62
63
64
65
66
This approach is described (but not endorsed) by McHugh J in Markarian (2005) 228 CLR 357, 377–9
[51]–[54].
(2001) 207 CLR 584, 612 [77] (Gaudron J, Gummow and Hayne JJ).
See the dicta of McHugh J who notes the difficulties of any ‘attempts to give the process of sentencing a
degree of exactness which the subject matter can rarely bear’: AB v The Queen (1999) 198 CLR 111, 120
[13].
(2005) 228 CLR 357, 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); see also Hili v The
Queen; Jones v The Queen (2010) 242 CLR 520.
For criticism of the instinctive synthesis approach to sentencing, see Mirko Bagaric, ‘Sentencing: The
Road to Nowhere’ (1999) 21 Sydney Law Review 597.
Azzopardi v The Queen [2011] VSCA 372, [56]–[59].
[2005] VSCA 11, [22].
[2012] NSWCCA 238, [57].
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Ultimately, the notion of a ‘crushing’ sentence remains impressionistic. In R
v Vaitos, Young CJ stated:
Is the effective sentence to be regarded as crushing? This question can only be
answered in relation to the facts of the case. The answer cannot be arrived at
mathematically by reference to the offender’s age and the length of sentence to be
served. In the particular case of this applicant, having regard to the very large
number of very serious offences, and notwithstanding the severity of the effective
sentence, I have come to the conclusion that the point has not been reached at
which this Court is required to set aside the sentence as crushing.67
It is not clear whether the desire to avoid a crushing sentence is part of or
incidental to the totality principle. In R v Piacentino, Eames JA (with whom
Buchanan and Vincent JA agreed) observed that the concept of a crushing
sentence is distinct from the principle of totality, and, in particular, that totality
applies even when the sentence is not crushing. Justice of Appeal Eames noted:
As Callaway JA observed in R v Barnes, there is a difference between the
principle of totality and the avoidance of a ‘crushing’ sentence – because a
sentence of three years, for example, might offend totality principles and yet not
be so long as to crush the offender – and the requirement to ‘stand back’ and
assess the overall criminality applies even where the sentence would not be
described as crushing.68
A different view is taken in Western Australia, where the desire not to
impose a crushing sentence is regarded as the second limb of the totality
requirement. In Roffey v The State of Western Australia,69 McLure JA stated:
The appellant relies on the totality principle which comprises two limbs. The first
limb is that the total effective sentence must bear a proper relationship to the
overall criminality involved in all the offences. … The second limb is that the
court should not impose a ‘crushing’ sentence.70
Pragmatically, the issue of whether the desire to avoid a crushing sentence is
core to the totality principle or an external check to its application is moot. There
are three reasons for this. First, as noted above, the meaning of a crushing
sentence is unclear and hence, at its highest, it only provides a slight qualification
to the principle. Secondly, both approaches recognise that the totality principle
can apply even when the sentence is not crushing. Thirdly, there is no question
that in some instances a crushing sentence is appropriate and, in fact, must be
imposed.71
The avoidance of crushing sentences is at best an aspirational aim of
sentencing as opposed to a firm requirement. The fact that tariffs for certain
67
68
69
70
71
(1981) 4 A Crim R 238, 257.
(2007) 15 VR 501, 507 [33] (citation omitted).
[2007] WASCA 246.
Roffey v The State of Western Australia [2007] WASCA 246, [24]–[25]. This has been expressly
approved in a number of cases, see, eg, Koncurat v Western Australia [2010] WASCA 184. See also
Bagnato (2011) 112 SASR 39; Narrier v Western Australia [2011] WASCA 193.
Also, it is clear that totality does not only apply in the case of potentially crushing sentences. In Johnson
(2004) 78 ALJR 616, 624 [22] Gummow, Callinan and Heydon JJ stated: ‘We would with respect doubt
that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality
principle may be applied.’
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categories of offences have increased considerably in recent years72 indicates a
dilution of the desire to avoid crushing sentences. In R v E, Doyle CJ stated:
‘[c]are must be taken in using the concept of a crushing sentence. Not
uncommonly, for particularly serious crimes, a sentence that is crushing in its
effect must be imposed.’73
The lack of weight given to a crushing sentence is highlighted in Paxton v
The Queen (‘Paxton’) where Johnson J (Tobias AJA and Hall J agreeing) stated
that ‘[c]ourts are not unfamiliar with descriptions of sentences as “crushing” but
that does not articulate some applicable test. A life sentence would presumably
fall within the ambit of that description but the legitimacy of availability of a life
sentence is not open to challenge.’74
Logically, sentences of life imprisonment are crushing. Nevertheless, they are
often imposed in relation to single offences, such as murder.75 The desire not to
impose crushing sentences does not apply a meaningful fetter to the imposition of
such penalties in relation to single offences. It follows that it must impose even
less of a restraint in cases of multiple offences, given that, all things being equal,
they are more serious single offences. Accordingly, at best, the concept of a
crushing sentence is a weak consideration in the context of the application of the
totality principle.
F Summary: Scope and Application
Thus, the totality principle is unclear at the margins, but the following rules
emerge regarding its scope and application:
•
The principle of totality applies to guide sentencing regarding the
appropriate penalty in cases of multiple offending;
•
The effect of the principle is to reduce the overall penalty, compared to a
linear cumulation of the sentence for each offence;
•
It applies to all situations where multiple offending is considered by the
courts, including when an offender is being sentenced for more than one
offence, when an offender is already undergoing a sentence and is being
sentenced for separate offences, and when an offender has completed a
sentence and is being sentenced for an offence which was committed
before or during the period of the initial sentence;
•
The main technique for achieving totality is to make sentences totally or
partially concurrent. Where this is not feasible, the sentence for each
offence is reduced;
72
73
74
75
This is especially the case in relation to drug offences and offences against the person. See Mirko Bagaric
and Richard Edney, Australian Sentencing (Thomson Reuters, 2011).
(2005) 93 SASR 20, 30 [38]. This was approved in R v Walkuski [2010] SASC 146, [5].
[2011] NSWCCA 242, [213], citing Ta’ala v The Queen [2008] NSWCCA 132, [40]–[42] (Grove J).
The principle of totality has limited application in such instances: see Roberts v The Queen [2012] VSCA
313, [105].
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•
•
•
•
•
•
Volume 36(1)
Totality applies even when the offences are committed over a longer
period and are of a different nature, although the longer the time period
between offences and the more disparate they are in nature, the less
concurrency will apply;
Offences against the person will rarely result in total concurrency, even
when the harm is caused by the single act;
The totality principle is informed by the desire to avoid crushing
sentences. While the concept of crushing is unclear, it generally applies
where, given the length of the sentence and the age of the offender, it
would engender a feeling of hopelessness;
In relation to serious crimes, a crushing sentence may be necessary;
A sentence does not need to be crushing to attract the operation of the
totality principle;
There is no standard formula for giving effect to concurrency. The
reduction in penalty, as compared to a linear cumulation of each
sentence, is a matter for the sentencing judge or magistrate whose choice
is close to an unfettered discretion; and
The principle (as discussed below) has two rationales: proportionality
and mercy. Both are vague, hence totality remains obscure.76
III RATIONALE FOR THE TOTALITY PRINCIPLE:
PROPORTIONALITY AND MERCY
A Judicial Comments
There is scant discussion regarding the justification for the totality principle.
The most succinct and clear rationale is in R v Walkuski, where Doyle CJ stated
that ‘[i]t can also be said that the concept of totality reflects two particular
considerations. One of them is proportionality. The sentence must bear an
appropriate proportion to the overall criminality involved. The other is mercy.’77
Thus, the concerns that underpin totality are proportionality and mercy, which
themselves are discrete sentencing considerations.
More extensive analysis of the rationale for totality has occurred, but it has
not clarified the underpinnings of the doctrine. In Bogdanovich v The Queen,78
Ashley and Weinberg JJA stated:
The totality principle is said to ‘defy precision either of description or
implementation’. Sometimes it is described as a requirement of ‘just deserts’, and
whether the total effective sentence offends that principle is often a ‘matter of
impression’. … The problem [of application] is exacerbated, however, when the
sentencing judge must have regard not merely to totality in relation to the offences
76
77
78
See also R v XX (2009) 195 A Crim R 38, 48 [52] for an overview of the totality principle.
R v Walkuski [2010] SASC 146, [6].
[2011] VSCA 388.
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for which the offender is being sentenced, but also other periods of incarceration
in respect of earlier and unrelated offending.79
The concept of ‘just deserts’ articulated in the above passage is not a separate
justification but seems to be a reference to the proportionality principle, which is
commonly interchanged with the just deserts concept.80 An illuminating aspect of
the above passage is the recognition that totality is an obscure principle and, in
fact, so obscure that courts have recognised it as being impressionistic.
We now consider whether proportionality and mercy can underpin the totality
principle.
B Proportionality: Too Vague to be Instructive
As the High Court stated in Hoare v The Queen, ‘a basic principle of
sentencing law is that a sentence of imprisonment imposed by a court should
never exceed that which can be justified as appropriate or proportionate to the
gravity of the crime considered in the light of its objective circumstances.’81
The principle of proportionality (at least in theory) operates to ‘restrain
excessive, arbitrary and capricious punishment’82 by requiring that punishment
must not exceed the gravity of the offence, even where it seems certain that the
offender will immediately re-offend.83
The key aspect of the principle is that it has two limbs. The first is the
seriousness of the crime and the second is the harshness of the sanction. Further,
the principle has a quantitative component – the two limbs must be matched. In
order for the principle to be satisfied, the seriousness of the crime must be equal
to the harshness of the penalty.
Proportionality is one of the main objectives of sentencing.84 In Veen v The
Queen (No 1)85 and Veen v The Queen (No 2),86 the High Court stated that
proportionality is the primary aim of sentencing. It is considered so important
that it cannot be trumped even by the goal of community protection, which at
various times has also been declared as the most important aim of sentencing.87
Thus, in the case of dangerous offenders, while community protection remains an
79
80
81
82
83
84
85
86
87
Bogdanovich v The Queen [2011] VSCA 388, [63]–[66] (citations omitted). This was approved in Contin
v The Queen [2012] VSCA 247.
See, eg, Jami L Anderson, ‘Reciprocity as a Justification for Retributivism’ (1997) 16 Criminal Justice
Ethics 13; Andrew von Hirsch, Censure and Sanctions (Oxford University Press, 1993); M Bagaric,
Punishment and Sentencing; A Rational Approach (Routledge, 1st ed, 2001) ch 1–4.
(1989) 167 CLR 348, 354 (emphasis altered).
Richard G Fox, ‘The Meaning of Proportionality in Sentencing’ (1994) 19 Melbourne University Law
Review 489, 492.
See, eg, R v Jenner [1956] Crim L R 495, in which the court reduced a term of imprisonment despite
believing that ‘it appeared likely that [the offender] would commit a crime as soon as he was released
from prison’.
Australian Law Reform Commission, Sentencing, Report No 44 (1988) 15–16; New South Wales Law
Reform Commission, Sentencing, Discussion Paper No 33 (1996) ch 3; Home Office, Great Britain,
‘Criminal Justice and Protecting the Public’ (White Paper, Home Office, 1990) 5.
(1979) 143 CLR 458, 467.
(1988) 164 CLR 465, 472.
See, eg, Channon v The Queen (1978) 33 FLR 433.
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important objective, at common law it cannot override the principle of
proportionality. It is for this reason that preventive detention is not sanctioned by
the common law.88 Proportionality has also been given statutory recognition in
all Australian jurisdictions.89
There has been no systematic, doctrinally sound approach to defining the
factors that are relevant to proportionality. Rather than positively defining the
factors that are relevant to offence severity, it has proved easier to dismiss some
considerations as being irrelevant. Factors such as ‘good character, …
repentance, restitution, possible rehabilitation and intransigence’90 have been
excluded.91 However, some factors have been positively identified as relevant to
offence seriousness. These include: the consequences of the offence, as well as
the level of harm; the victim’s vulnerability and the method of the offence;92 the
offender’s culpability, which turns on such factors as the offender’s mental
state93 and his or her level of intelligence; the level of sophistication involved;94
the protection of society;95 and even the offender’s previous criminal history.96
The problem with such a list is that despite its non-exhaustive character, it is
too particular, and is no more than a non-exhaustive list of common aggravating
factors. Once considerations such as the method of the offence and the victim’s
vulnerability are included, there appears to be no logical basis for not including
other considerations that are typically thought to increase the severity of an
offence such as breach of trust, the prevalence of the offence, profits derived
from the offence, and an offender’s degree of participation. Such an approach is
devoid of an overarching justification and is, ultimately, baseless.
88
89
90
91
92
93
94
95
96
Chester v The Queen (1988) 165 CLR 611, 618. See also R v Chivers [1993] 1 Qd R 432, 437–8.
The Sentencing Act 1991 (Vic) s 5(1)(a) provides that one of the purposes of sentencing is to impose just
punishment (s 5(1)(a)), and that in sentencing an offender the court must have regard to the gravity of the
offence (s 5(2)(c)) and the offender's culpability and degree of responsibility (s 5(2)(d)). The Sentencing
Act 1995 (WA) states that the sentence must be ‘commensurate with the seriousness of the offence’ (s
6(1)) and the Crimes (Sentencing) Act 2005 (ACT), s 7(1)(a) provides that the sentence must be ‘just and
appropriate’. In the Northern Territory and Queensland, the relevant sentencing statute provides that the
punishment imposed on the offender must be just in all the circumstances (Sentencing Act 1995 (NT) s
5(1)(a); Penalties and Sentences Act 1992 (Qld) s 9(1)(a)), while in South Australia the emphasis is upon
ensuring that ‘the defendant is adequately punished for the offence’ (Criminal Law (Sentencing) Act 1988
(SA) s 10 (1)(j)). The need for a sentencing court to ‘adequately punish’ the offender is also fundamental
to the sentencing of offenders for Commonwealth matters (Crimes Act 1914 (Cth) s 16A(2)(k)). The same
phrase is used in the New South Wales Crimes (Sentencing Procedure) Act 1999, s 3A(a).
Veen v The Queen (No 2) (1988) 164 CLR 465, 491.
See also Hoare v The Queen (1989) 167 CLR 348, 363.
This includes the matters such as use of weapons and whether there was a breach of trust: see Richard G
Fox, ‘The Meaning of Proportion in Sentencing’ (1994) 19 Melbourne University Law Review 489, 499–
500.
For example, whether it was intentional, reckless or negligent.
See Richard G Fox, ‘The Meaning of Proportion in Sentencing’ (1994) 19 Melbourne University Law
Review 489, 498–501; New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33
(1996) 62–4.
Veen v The Queen (No 2) (1988) 164 CLR 465, 474.
R v Mulholland (1991) 1 NTLR 1, 13 where prior convictions were treated as part of the objective
circumstances of the offence on the basis that they are relevant to the mens rea of the offender in
committing the offence. This view was rejected in R v McNaughton (2006) 66 NSWLR 566.
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It is for this reason that despite the widespread recognition of the principle,
there is no convergence in sentences either within or across jurisdictions – even
those that ostensibly place cardinal emphasis on proportionality in sentencing
determinations.97 The vagaries are so pronounced that it is verging on doctrinal
and intellectual fiction to suggest that an objective answer can be given to
common sentencing dilemmas, such as how many years of imprisonment is
equivalent to the pain felt by an assault victim, or whether a burglar should be
dealt with by way of imprisonment or fine, or the appropriate sanction for a drug
trafficker. Certainly, there is no demonstrable violation of proportionality if a
mugger, robber or drug trafficker is sentenced to either 12 months or 12 years
imprisonment.98
Some commentators have argued that proportionality is so vague as to be
meaningless, in light of the fact that there is no stable and clear manner in which
the punishment can be matched to the crime.99 Jesper Ryberg notes that one of
the key and damaging criticisms of proportionality is that it ‘presupposes
something which is not there, namely, some objective measure of appropriateness
between crime and punishment.’100 The most obscure and unsatisfactory aspect
of proportionality is that there is no stable and clear manner in which the
punishment can be matched to the crime. Jesper Ryberg further notes that to give
97
98
See also Jesper Ryberg, The Ethics of Proportionate Punishment: A Critical Investigation (Springer,
2004) 2.
Just deserts (or retributive) theorists contend that proportionality is capable of providing clear guidance
regarding choice of punishment: see also Andrew von Hirsch, Past or Future Crimes: Deservedness and
Dangerousness in the Sentencing of Criminals (Rutgers University Press, 1985); Andrew von Hirsch and
Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005);
Andrew von Hirsch and Nils Jareborg, ‘Gauging Criminal Harm: A Living-Standard Analysis’ (1991) 11
Oxford Journal of Legal Studies 1. In our view, just deserts theory is doctrinally flawed. The main reason
for this is that it cannot justify the need for punitive measures without resort to consequential
considerations. The consequentialist considerations they normally invoke are said to come in the form of
deterrence or victim (or community) satisfaction that is supposedly achieved by imposing hardships on
wrongdoers. But reliance on such matters makes these theories incoherent. It means that punishment is
not desirable in itself. Instead, it is only a worthwhile objective to the extent that it actually achieves such
outcomes. In the end, this makes these theories simply a species of utilitarianism. Ultimately, the reliance
on consequences undercuts the stability of many retributive theories. Without adverting to
consequentialist considerations, it is impossible to justify the link between crime and punishment. See
Stanley I Benn and Richard Stanley Peters, Social Principles and the Democratic State (Allen & Unwin,
1959):
We can justify rules and institutions only by showing that they yield advantages. Consequently,
retributivist answers to the problem can be shown, on analysis, to be either mere affirmations of the
desirability of punishment or utilitarian reasons in disguise … To say, with Kant, that punishment is a good
in itself, is to deny the necessity for justification; for to justify is to provide reasons in terms of something
else accepted as valuable’: at 175–6.
99
100
See also Mirko Bagaric and Kumar Amarasakera, ‘The Errors of Retributivism’ (2000) 24 Melbourne
University Law Review 124. In our view, the proportionality principle is most strongly underpinned by a
utilitarian approach to punishment: see Mirko Bagaric, ‘Proportionality in Sentencing: Its Role and
Justification’ (2000) 12 Current Issues in Criminal Justice 142.
As noted in section II of this article, the courts have not attempted to exhaustively define the factors that
are relevant to proportionality.
Ryberg, above n 97, 184.
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content to the theory it is necessary to rank crimes, rank punishments and ‘anchor
the scales’.101
Thus, even when it comes to matching the punishment for one offence, there
is considerable speculation about whether it can be done with any degree of
objectivity or precision. This uncertainty is necessarily compounded when an
offender is sentenced for more than one offence.
What is clear, however, is that the first limb of the proportionality principle,
in fact, directly contradicts the totality thesis. The harm caused by a number of
offences is no less when it is committed by one offender. The total harm caused
by five rapes (on five different victims) is identical whether they are committed
by five different offenders or the one offender. Thus, on the basis of this limb,
proportionality does not in fact support, let alone justify, the totality principle.
However, proportionality may go some way to justifying totality if one
focuses on the impact of the severity of punishment on an offender. It has been
suggested that the hardship inflicted by a term of imprisonment increases at a
higher rate than the duration of a sentence. In Paxton v The Queen, Johnson J
(Tobias AJA and Hall J agreeing) adopted the earlier remarks by Malcolm CJ in
R v Clinch, stating:
the severity of a sentence increases at a greater rate than any increase in the length
of the sentence. Thus, a sentence of five years is more than five times as severe as
a sentence of one year. Similarly, while a sentence of seven years may be
appropriate for one set of offences and a sentence of eight years may be
appropriate for another set of offences, each looked at in isolation. Where both
sets were committed by the one offender a sentence of 15 years may be out of
proportion to the degree of criminality involved because of the compounding
effect on the severity of the total sentence of simply aggregating the two sets of
sentences.102
This involves a degree of speculation. In fact the converse could equally be
argued: a sentence of, say, one year, is more than one quarter as onerous as a
sentence of four years imprisonment. This is especially the case because the
principal dichotomy between sentencing options is imprisonment or no
imprisonment. Even a short jail term results in the potentially severe incidental
harm in the form of the stigma associated with a jail term and other social,
economic and employment deprivations and limitations.103 Arguably, these
incidental deprivations are not made meaningfully worse by a longer term of
imprisonment.
Thus, intuitively, there is some appeal to the argument that the impact of
sentences compounds at a greater rate than their linear length, but this is by no
means incontestable. There is at best a weak argument in support of the
contention that proportionality can justify totality. And, to the extent that it can
101
102
103
Ibid 185. Even retributivists have been unable to invoke the proportionality principle in a manner which
provides firm guidance regarding appropriate sentencing ranges: see, eg, von Hirsch and Ashworth,
above n 98; von Hirsch and Jareborg, above n 98.
[2011] NSWCCA 242, [212] (citations omitted).
Gresham M Sykes, ‘The Pains of Imprisonment’ in Gresham M Sykes, The Society of Captives: A Study
of a Maximum Security Prison (Princeton University Press, 1958) 285, 287.
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underpin the totality principle, the utility of this is limited given the vague nature
of the proportionality principle.
C Mercy: A Feeling Rather Than a Legal Construct
The other purported justification for the totality principle is the principle of
mercy.104 However, mercy itself is a fragile construct. It is devoid of any
recognisable legal foundation and is unpredictable in its application. Its
application appears to be grounded in the capacity of the offender’s subjective
circumstances to enliven judicial sympathy. Further, there is no guidance
regarding the extent to which it operates to reduce a sentence.
The nexus between mercy and sympathy was noted by King CJ in R v
Osenkowski:
There must always be a place for the exercise of mercy where a judge’s
sympathies are reasonably excited by the circumstances of the case. There must
always be a place for the leniency which has traditionally been extended, even to
offenders with bad records when the judge forms the view, almost intuitively in
the case of experienced judges, that leniency at that particular stage of the
offender’s life might lead to reform.105
Comments in R v Kane also endorse the sympathy rationale but attempt to
inject an aspect of principle. The Court stated that:
mercy must be exercised upon considerations which are supported by the evidence
and which make an appeal not only to sympathy but also to well-balanced
judgment. … If a court permits sympathy to preclude it from attaching due weight
to the other recognized elements of punishment, it has failed to discharge its
duty.106
However, there is no indication of what is meant by ‘a well-balanced
judgment’. The term cannot relate to established mitigating factors because
mercy operates outside them. The operation of the principle of mercy was most
recently considered at length by the full bench of the Victorian Court of Appeal
in Markovic v The Queen; Pantelic v The Queen.107 The Court noted that
hardship faced by a family as a result of an offender’s imprisonment is grounds
for the exercise of mercy in exceptional circumstances, but that the principle of
104
105
106
107
Judges and magistrates do not possess the prerogative of mercy: Johanson v Dixon (No 3) [1978] VR
377. The concept is part of the sentencing discretion. A related concept to mercy is parsimony, which is
the view that a sentence should not be harsher than that required to fulfil its social purpose: NOM v DPP
& Ors [2012] VSCA 198, [68]. It has been expressly noted that parsimony is probably not part of
sentencing law: see Blundell v The Queen (2008) 70 NSWLR 660, 665–6 [39]–[47]; Foster v The Queen
[2011] NSWCCA 285, [50]–[53](Adams J). If the principle is part of sentencing law, its inexactness is
incapable of shoring up other principles, such as totality.
(1982) 30 SASR 212, 212–13. This is approved in R v Davies (2006) 164 A Crim R 353; R v Darby
[2011] NSWCCA 52. See also Richard G Fox, ‘When Justice Sheds a Tear: The Place of Mercy in
Sentencing’ (1999) 25 Monash University Law Review 1.
[1974] VR 759, 766.
(2010) 30 VR 589.
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hardship only applies when recognised mitigating circumstances are
exhausted.108
Thus, as mercy is grounded in sympathy and, is by its nature an emotional
response, it is difficult, if not impossible, to demarcate its bounds.109 Arguably, it
has no role in a system of law that purports to comply with the virtues of the rule
of law, which minimally commands that the law must consist of predetermined
rules and principles,110 such that it is knowable and predictable.111 The fragility
of the concept of mercy as an appropriate legal principle undermines its capacity
to explain and justify subordinate principles, such as totality.
A further conceptual difficulty with mercy in the context of totality is that it
is superfluous. As we saw above, a key aspect of the proportionality principle is
that it is meant to guard against excessive punishment. It is unclear why this
objective should be advanced by two independent rationales in the context of the
principle of totality.112
Even if mercy can underpin totality, the boundless nature of mercy means
that it is incapable of providing any guidance regarding the extent to which
totality should moderate sentences.
IV REFORM RECOMMENDATIONS
A Overview of Other Potential Rationales for Totality
The totality principle is vague in its scope and operation because the ideas
supposedly underpinning it are themselves obscure. Proportionality is unable to
match with any degree of precision the competing limbs of the doctrine, while
mercy is more akin to an emotional retort than a justifiable legal standard.
However, it may yet be that totality is justifiable. Offenders who are
sentenced for multiple offences at the same time can be distinguished from
offenders sentenced to the same offences separately, following the expiration of
108
109
110
111
112
For a recent application of this principle, see El-Hage v The Queen [2012] VSCA 309, where a sentence
was reduced on account of hardship to the family caused by the imprisonment of the offender.
The suggestion that there is a concept of ‘rational mercy’ is debunked by David Hume’s theory of human
motivation, which distinguishes between two states of mind: beliefs and desires. For a fuller account of
Hume's theory of motivation see Michael Smith, ‘Valuing: Desiring or Believing?’ in David Charles and
Kathleen Lennon (eds), Reduction, Explanation and Realism (Oxford University Press, 1992) 323;
Michael Smith, ‘Realism’, in Peter Singer (ed), A Companion to Ethics (Basil Blackwell, 1991) 399,
400–2. According to Hume, there are two broad mental states. Beliefs are copies or replicas of the way
we believe the world to be. Desires (which is the realm in which emotions reside) are our wants; the
states that move us to act. Beliefs are capable of being right or wrong and hence are rational. Desires on
the other hand are not amenable to reason and hence it is flawed to place them within a logical construct.
For a discussion on the distinction between rules and principles, see Ronald Dworkin, Taking Rights
Seriously (Duckworth, 4th ed, 1977) 22–8, 76–7.
See Joseph Raz, The Authority of Law (Oxford University Press, 1979) ch 11, 211, 214–16; John Finnis,
Natural Law and Natural Rights (Oxford University Press, 1980) 270–6.
Potentially, mercy could still be relevant to the extent that proportionality sets the lower limit for an
appropriate penalty. However, in reality, the need for merciful intervention in relation to sentences that
are as lenient as possible within the bounds of proportionality is questionable.
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each sentence. While sentencing is, essentially, a punitive exercise, some of its
objectives are designed to either assist the offender or at least reduce the prospect
that he or she will reoffend. Thus, sentencing has a positive aspect from the
perspective of the offender. Offenders who have been sentenced for multiple
offences separately, following the expiration of each sentence, have had the
benefit of interventions with the potential to curtail their criminality. Those
sentenced for multiple offences at the same time have not benefitted from this
positive aspect of sentencing. Arguably, their culpability is less than offenders
who have completed their sentencing and then re-offended.
The two main sentencing objectives designed to discourage reoffending by
particular offenders (as opposed to potential offenders) are specific deterrence
and rehabilitation. Specific deterrence aims to discourage crime by punishing
individual offenders for their transgressions and, thereby, convincing them that
crime does not pay. In effect, it attempts to dissuade offenders from reoffending
by inflicting an unpleasant experience (normally imprisonment) which they will
seek to avoid in the future.113
Specific deterrence is a central common law sentencing objective and is
given express statutory recognition in all Australian jurisdictions.114 Specific
deterrence applies most acutely in relation to serious offences115 and offenders
with significant prior convictions,116 since it is assumed that previous sanctions
have failed to stop their criminal behaviour. Conversely, it has little application
where an offender has voluntarily desisted from further offending117 or where the
offender was suffering from impaired intellectual or mental functioning at the
time of the offence.118
Rehabilitation, like specific deterrence, aims to discourage the commission of
future offences. The main difference between these objectives lies in the means
used to encourage desistence from crime. Specific deterrence focuses on
frightening an offender into not reoffending. Rehabilitation, by contrast, seeks to
alter the values of the offender so that he or she no longer desires to commit
criminal acts – it involves the renunciation of wrongdoing by the offender and
the re-establishment of the offender as an honourable, law-abiding citizen.119 It is
achieved by ‘reducing or eliminating the factors which contributed to the conduct
113
114
115
116
117
118
119
See Mirko Bagaric, Punishment and Sentencing: A Rational Approach (Routledge-Cavendish, 2001) ch
6.
Crimes Act 1914 (Cth) s 16A(2)(j); Crimes (Sentencing) Act 2005 (ACT) s 7(1)(b); Crimes (Sentencing
Procedure) Act 1999 (NSW) s 3A(b); Sentencing Act 1995 (NT) s 5(1)(c); Penalties and Sentences Act
1992 (Qld) s 9(1)(c); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(i); Sentencing Act 1997 (Tas) s
3(e)(i); Sentencing Act 1991(Vic) s 5(1)(b).
See, eg, DPP (Vic) v Zullo [2004] VSCA 153; DPP (Vic) v Lawrence (2004) 10 VR 125.
See, eg, Saunders v The Queen [2010] VSCA 93.
R v Pickett [2010] NSWCCA 273.
R v Verdins (2007) 16 VR 269; Melham v The Queen [2011] NSWCCA 121; R v HBA [2010] QCA 306,
[31]; R v Goodger [2009] QCA 377, [21]; Startup v Tasmania [2010] TASCCA 5.
See, eg, Vartzokas v Zanker (1989) 51 SASR 277, 279.
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for which [the offender] is sentenced’.120 Thus, it works through a process of
positive, internal attitudinal reform.121
Offenders who are sentenced and then reoffend have not had the advantage
that these sentencing aims seek to achieve. However, this is only an actual
detriment if, in fact, it is likely that specific deterrence or rehabilitation would
have diminished the likelihood of subsequent offending.
We now analyse the efficacy of the sentencing process in achieving the goals
of specific deterrence and rehabilitation. There have been hundreds of relevant
empirical studies. Hence, it is not feasible to summarise them all here. However,
as now discussed, the trend of the evidence is now relatively settled and it is
tenable to provide an overview of the current state of knowledge regarding these
topics.
B Specific Deterrence Does Not Work
The available empirical data suggest that specific deterrence does not work.
The evidence suggests that inflicting harsh sanctions on individuals does not
make them less likely to re-offend in the future. The level of certainty of this
conclusion is very high – so high that specific deterrence should be abolished as a
sentencing consideration.
There have been numerous studies across a wide range of jurisdictions and
different time periods which come to this conclusion.122 Daniel Nagin, Francis T
Cullen and Cheryl L Jonson provide the most recent extensive literature review
regarding specific deterrence.123 They reviewed the impact of custodial sanctions
versus non-custodial sanctions and the effect of sentence length on reoffending.
The review examined six experimental studies where custodial versus noncustodial sentences were randomly assigned;124 11 studies which involved
matched pairs;125 31 studies which were regression based126 and seven other
studies which did not neatly fit into any of those three categories, and included
naturally occurring social experiments which allowed inferences to be drawn
regarding the capacity of imprisonment to deter offenders.127
120
121
122
123
124
125
126
127
Channon v The Queen (1978) 33 FLR 433, 438.
See also C L Ten, Crime, Guilt and Punishment: A Philosophical Introduction (Oxford University Press,
1987) 7–8.
These are summarised recently in Mirko Bagaric and Theo Alexander, ‘The Capacity of Criminal
Sanctions to Shape the Behaviour of Offenders: Specific Deterrence Doesn’t Work, Rehabilitation Might,
and the Implications for Sentencing’ (2012) 36 Criminal Law Journal 159.
Daniel S Nagin, Francis T Cullen and Cheryl L Jonson, ‘Imprisonment and Reoffending’ (2009) 38
Crime & Justice 115, 145. The main studies are summarised in: Don Weatherburn, Sumitra Vignaendra
and Andrew McGrath, ‘The Specific Deterrent Effect of Custodial Penalties on Juvenile Reoffending’
(2009) 132 Crime and Justice Bulletin; Donald Ritchie, ‘Does Imprisonment Deter? A Review of the
Evidence’ (Report, Sentencing Advisory Council, 2011).
Nagin, Cullen and Jonson, above n 123, 144–5.
Ibid 145–54.
Ibid 154–5.
Ibid.
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The last category included a study based on clemency granted to over 20 000
prisoners in Italy in 2006. A condition of release was that if those who were
released reoffended within five years they would be required to serve the
remaining (residual) sentence plus the sentence for the new offence. It was noted
that there was a 1.24 per cent reduction in reoffending for each month of the
residual sentence. This observation can be explained on the basis that the threat
of future imprisonment discouraged reoffending. However, it was also noted that
offenders who had served longer sentences prior to being released had higher
rates of reoffending, supporting the view that longer prison terms reduce the
capacity for future imprisonment to shape behaviour.128
Nagin et al suggest that offenders who are sentenced to imprisonment do not
have a lower rate of recidivism than those who receive a non-custodial penalty
and, in fact, that some studies show that the rate of recidivism among offenders
sentenced to imprisonment to be higher. They conclude that:
Taken as a whole, it is our judgment that the experimental studies point more
toward a criminogenic [that is, the possible corrupting effects of punishment]
rather than preventive effect of custodial sanctions. The evidence for this
conclusion, however, is weak because it is based on only a small number of
studies, and many of the point estimates are not statistically significant.129
The review suggests that not only do longer jail terms not deter, but neither
do tougher jail conditions. Studies also show that offenders who are sentenced to
maximum security prisons as opposed to minimum security conditions do not
reoffend less.130
These general findings are supported by a more recent experimental study by
Donald Green and Daniel Winik.131 They observed the reoffending of 1003
offenders who were initially sentenced for drug-related offences between June
2002 and May 2003 by a number of different judges whose sentencing
approaches varied significantly (some were described as ‘punitive’, others as
‘lenient’), resulting in differing terms of imprisonment and probation. The study
concluded that neither the length of imprisonment nor probation had an effect on
the rate of reoffending during the four year follow-up period.132
Accordingly, the weight of evidence supports the view that subjecting
offenders to harsh punishment is unlikely to increase the prospect that they will
become law-abiding citizens in the future.
It seems that specific deterrence embedded in an earlier sanction would not
have reduced the likelihood of reoffending. It follows that there is no basis for
treating offenders sentenced for multiple offences at the same time differently
from offenders sentenced consecutively. Thus, the fact that offenders who are
sentenced for multiple offences at the same time have been denied the specific
128
129
130
131
132
Ibid 155.
Ibid 145.
Ibid 124.
Donald P Green and Daniel Winik, ‘Using Random Judge Assignments to Estimate the Effects of
Incarceration and Probation on Recidivism Among Drug Offenders’ (2010) 48 Criminology 357.
Ibid.
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deterrent aspect of an earlier sanction cannot justify their overall penalty being
reduced on account of the totality principle.
C Rehabilitation Probably Does Work
The evidence about rehabilitation is less conclusive but more promising – on
balance, it seems that specific forms of intervention may be able to reduce
recidivism. The effectiveness of rehabilitation in reducing repeat offending has
been the subject of a large number of studies. Following extensive research
conducted between 1960 and 1974, Robert Martinson, in an influential paper,
concluded that empirical studies had not established that any rehabilitative
programs had worked in reducing recidivism.133 The Panel of the National
Research Council in the United States, several years after this work, also noted
that there were no significant differences between the subsequent recidivism rates
of offenders regardless of the form of punishment. As they stated,’[t]his suggests
that neither rehabilitative nor criminogenic effects operate very strongly’.134
In recent years, the research has taken on a more optimistic note. Most
Australian jurisdictions have devoted increasing resources to rehabilitation over
the past decade. The most recent wide-ranging Australian study regarding the
effectiveness of rehabilitation is a report by Karen Heseltine, Andrew Day and
Rick Sarre for the Australian Institute of Criminology, published in 2011.135 The
report focused on changes and improvements to prison based correction
rehabilitation programs in the custodial environment since 2004, when the
previous report was issued.136
The report by Heseltine et al, while unable to evaluate the effectiveness of
rehabilitation programs currently operating in Australian prisons, summarised
recent studies into the effectiveness of certain rehabilitation programs. It noted
that while there were mixed results, there were some programs that reported
positive outcomes.
This was especially the case in relation to sexual offender programs, where
some studies showed that the recidivism rate of offenders completing the
program was less than half of that of other offenders.137 The results of programs
directed towards violent offenders were less positive, but a wide-ranging review
of studies focusing on United Kingdom programs noted that reductions in
offending for violent offences by around seven to eight per cent had occurred.
Overseas studies reported some success with anger management programs, but
133
134
135
136
137
R M Martinson, ‘What Works? Questions and Answers about Prison Reform’ (1974) 35 Public Interest
22, 25.
Alfred Blumstein, Jacqueline Cohen, and Daniel Nagin (eds), Deterrence and Incapacitation: Estimating
the Effects of Criminal Sanctions on Crime Rates (National Academy of Sciences, 1978) 66.
Karen Heseltine, Andrew Day and Rick Sarre, ‘Prison-Based Offender Rehabilitation Programs: The
2009 National Picture in Australia’ (Report, Australian Institute of Criminology, 2011)
<http://www.aic.gov.au/
documents/5/6/4/%7B564B2ECA-4433-4E9B-B4BA-29BD59071E81%7Drpp112.pdf>.
Ibid 2.
Ibid 14.
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an Australian study (of a shorter 20 hour program) showed no positive outcomes
related to program completion. There is no cogent evidence supporting the
effectiveness of domestic violence or victim awareness programs. However, drug
and alcohol programs have been shown to be effective at reducing substance
abuse and reoffending.138
This assessment is consistent with the findings of Mitchell, Wilson and
MacKenzie who undertook a major analysis of studies into the effectiveness of
drug treatment programs in prison.139 The studies they focused on related to drug
users and compared reoffending patterns of offenders who completed a drug
rehabilitation program with those who did not complete a program, or completed
only a minimum program between the years 1980 and 2004. They analysed 66
studies in total. The report concluded that ‘[o]verall, this meta-analytic synthesis
of evaluations of incarceration based drug treatment programs found that such
programs are modestly effective in reducing recidivism.’140
Moreover, it was noted that programs that dealt with the multiple problems of
drug users (termed therapeutic communities) were the most successful, whereas
there was no evidence to support good outcomes associated with ‘boot camp’
programs.141
Thus, there is some support for the view that criminal punishment can assist
to reform certain categories of offenders; although there is no firm evidence
showing that it cannot work for the majority of offenders.
Therefore, offenders who have not been subject to the rehabilitative aspects
of sentencing may indeed be at a disadvantage compared with those who have
previously been sentenced. Accordingly, it can be tenably asserted that offenders
who are sentenced for multiple offences are disadvantaged compared to those
sentenced consecutively.
D Implications for Totality
The current rationales for totality are flawed. The only tenable basis for
conferring a sentencing discount to offenders who are sentenced for more than
one offence is that they were deprived of the opportunity for internal attitudinal
reform that would probably have been a part of the sentence if they were
sentenced for one offence initially. Being deprived of this opportunity potentially
increases their likelihood of reoffending, hence, they are less culpable than
138
139
140
141
Ibid 27.
Ojmarrh Mitchell, David B Wilson and Doris L MacKenzie, ‘The Effectiveness of Incarceration-Based
Drug Treatment on Criminal Behaviour (Systematic Review, The Campbell Collaboration, 18 September
2006) <www.campbellcollaboration.org/lib/download/98/>.
Ibid 17.
Ibid.
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offenders who reoffend consecutively, despite being subjected to the
rehabilitative aspects of the sentencing process.142
While this provides a justification for the totality principle, it entails that
there should be a number of changes to its application.
First, it should be irrelevant whether the offences are of a similar nature – the
same discount should apply for similar or different offence types. The length of
time between offences should not be an important consideration. However, where
an offender has already been subjected to a sentence and reoffends while on
parole, the application of the totality principle is greatly diluted, given that he or
she has been subjected to a significant part of the rehabilitative aspect of the
sanction and has still reoffended.
The extent of the discount remains obscure given that the impact of
rehabilitation is speculative and the instinctive synthesis approach to sentencing
does not readily permit numerical computations. However, consistent with
current sentencing orthodoxy, it would seem that totality should not significantly
reduce the total effective sentence. While rehabilitation is an established
sentencing consideration, it is not a particularly important variable. There are
dozens of other mitigating and aggravating considerations143 and, in principle,
rehabilitation is seemingly no more powerful than most others. This statement
cannot be conclusively proven because the instinctive synthesis approach to
sentencing does not generally permit mathematical comparisons to be made of
the respective importance of sentencing considerations.144 However, this
uncertainty cuts both ways – unless there is a demonstrable reason to assert that
rehabilitation is a cardinal consideration, the default position is that it ranks
approximately equal to other established sentencing variables. In light of this, to
then suggest that totality should operate generally to greatly reduce penalties is
flawed because it is a case of a stream rising higher than its source.
V CONCLUSION
Totality is a well-established sentencing principle. The circumstances in
which it applies are also relatively well settled, although there remains some
142
143
144
The argument for a discount in these circumstances applies with less force in relation to offenders who
have previously been sentenced and have again reoffended. Where an offender has been, for example,
convicted and sentenced 10 years earlier and is now being sentenced for multiple offences, the first
sentence obviously did not succeed in totally rehabilitating the offender. However, he or she is not
thereafter precluded from attempts at rehabilitation by other sentences and hence a totality discount is still
appropriate in these circumstances.
Joanna Shapland identified 229 factors: J Shapland, Between Conviction and Sentence: The Process of
Mitigation (Routledge, 1981) 55; Roger Douglas identified 292 relevant sentencing factors: R Douglas,
Guilty Your Worship: A Study of Victoria’s Magistrates’ Courts (La Trobe University, 1980).
There are, in fact, two sentencing considerations that carry quantifiable reductions. They are pleading
guilty (generally up to 25 per cent) and assisting authorities (generally up to 50 per cent). Both of these
reductions are obviously considerable. Notably, rehabilitation is not treated similarly which suggests it is
not as weighty as these considerations. For a further discussion regarding the operation of these
mitigating factors, see Bagaric and Edney, above n 72.
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uncertainty regarding its operation when parole is violated and its application to
offences of a completely different nature. However, the manner in which it
applies, in the form of the size of the sentence reduction that it should confer, is
obscure. This is a matter of ongoing concern. It is also unclear at what point the
offending is so serious that the principle of totality ceases to have a meaningful
operation. Crushing sentences are appropriate in some circumstances, however,
they have not been defined with any degree of precision.
Thus, aspects of totality are obscure, leading to impressions of arbitrariness.
This is regrettable given that imprisonment is the harshest penalty that the
community imposes on individuals. The totality principle will remain unclear
because the underpinning rationales are themselves uncertain.
While proportionality is relatively coherent and grounded, numerous
definitional and pragmatic aspects remain unresolved, meaning that it is
incapable of providing clear guidance regarding the appropriate sentence.
Mercy is the most unstable rationale because it has no role in a system of law
given that it is principally based on stimulating the ‘feelings’ as opposed to
engaging with the rationality of the sentencer. Moreover, the weight mercy
should be accorded in the sentencing calculus is indeterminate.
The most tenable justification for the principle of totality stems from the goal
of rehabilitation. Offenders who are sentenced for multiple offences and did not
undergo the rehabilitative effect of an earlier sentence are disadvantaged
compared to those who had the opportunity to rehabilitate from an early
sentence, but failed to do so. Hence, totality is a justifiable principle, but the
extent to which it moderates sentencing is probably overstated. The weight that
any considerations relating to rehabilitation should be accorded in the sentencing
determination is modest given the lack of empirical clarity regarding its
effectiveness – it seems, at this point, to work for some offenders but not all and,
of course, it is not possible to determine which offenders would have benefited
from a rehabilitative intervention and which would not. However, it does follow
from this rationale that the totality principle is not contingent upon the offences
being of a similar nature nor having being committed over a short timeframe.
Further developments in totality theory and application are contingent upon a
fuller understanding of the principle of proportionality and, in particular, whether
longer sentences are disproportionately harsher than their linear increase would
suggest. If this is the case, potentially, there is a basis for strong application of
the totality principle, such that offenders who are sentenced for multiple offences
are entitled to a significant sentence reduction, as is currently the situation.
However, this is undermined significantly by a clear minded assessment of the
other limb of the proportionality thesis – the level of harm caused by a number of
criminal acts is the same, whether it is by the one offender or multiple offenders.